We hope that you, your families and colleagues are safe and doing well. We know these are difficult and challenging times for everyone, including US employers. As always, we are here to help you navigate the complexities of our current — and quickly changing — environment.
The EEOC recently updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance, first published in 2009, to specifically address the COVID-19 pandemic. The updated guidance is here.
Significantly, the EEOC confirms that the COVID-19 pandemic meets the “direct threat” standard for employee medical examinations and disability…
In February 2020, the NLRB finally unveiled its long-awaited joint-employer rule governing joint-employer status under the NLRA. The final rule returns the test for determining joint employment to the standard the Board applied for several decades before the 2015 Browning-Ferris decision. The test set forth by the new joint-employer rule provides that a business is a joint employer only if it has “substantial direct and immediate control” over another company’s workers and actually exercises that control. While this is no doubt a welcome relief for employers who routinely contract with subcontractors and staffing companies, it is important to note the limited scope and that this rule does not impact joint-employer tests applied under other employment laws. The proposed rule was initially released in late 2018 and ultimately generated nearly 30,000 public comments (see our coverage here).
Although the rule is an employer-friendly change, employees who are terminated for engaging in protected concerted actives will continue to have a claim for relief against their primary employer. Similarly, union organizing efforts can continue amongst temporary employees as they have for years. Bargaining will continue to occur as it always has between employers and their employees’ union representatives. The labor movement, however, is likely disappointed by the demise of the 2015 Browning-Ferris rule. For years, unions have chaffed at the prohibition against secondary boycotts contained in the Taft Hartley Act of 1947. The 2015 Browning-Ferris rule allowed a backdoor repeal of a significant portion of the secondary boycott ban with its loose definition of joint employer.
The Department of Labor just published its first round of guidance on the FFCRA, including two fact sheets and a FAQ explaining key provisions of the paid sick leave and paid child care requirements:
The DOL also published sample FFCRA posters that federal and private employers are required to post in the workplace, as well as a FAQ on how and where to post them. Notably, emailing the posters to remote workers satisfies the posting requirements.
Importantly, DOL has elected to make the paid leave provisions of the FFCRA effective April 1, 2020, instead of the anticipated April 2 date. The DOL also announced a 30-day suspension on enforcement actions if employers attempt in good faith to comply with the FFCRA.
Layoffs, reduced schedules, sick leave, and telecommuting—these are just a few of the issues that employers are navigating as they quickly adapt to the effects of the global pandemic. While moving full speed seems to be the only way to keep up with the rapidly-evolving landscape, companies should take a moment to ensure that they…
On Friday, March 20, 2020, the Internal Revenue Service (IRS), US Department of Labor (DOL), and US Department of the Treasury published a joint news release (Release) regarding tax credits available to employers who will be required to provide paid sick and family care leave for COVID-19-related purposes under the Families First Coronavirus Response Act…
Companies are permitting (or requiring) employees to work remotely right now in response to COVID-19 concerns. This decision, calculated to minimize certain risks, presents new and wide-ranging concerns for the protection of trade secrets. In this “temporary” working remotely environment, employees will have considerable opportunity to access, download, or store sensitive information from company systems and databases. Have you vetted these circumstances or otherwise addressed their use? Think – home printers? Cell phones? Tablets? Personal email accounts? Working in public places such as libraries and coffee shops? Companies may also be inclined to relax otherwise well thought out document management rules or allow for workarounds from the usual security measures in the interest of business continuity. In such an environment, employees may make assumptions that they have wider latitude to email, copy, send, print, or download information, given the circumstances. Compounding these insider risks are a series of unknowns, such as whether your employees’ home networks have security anywhere near on par with in-office network security that could allow outsiders to intrude or access data.
Trade secret litigation has grown exponentially in the United States, in part due to the passage of the Defend Trade Secrets Act (18 U.S.C. § 1836, et seq.) in 2016, and in response to the incredible value embodied in companies’ customer lists, knowhow, processes, formulas, business strategies, salary structures, and numerous other forms of intellectual property. If information is valuable, kept secret, and derives value from its secrecy, then it can be a protectable trade secret — as long as the company puts in place reasonable measures to maintain the secrecy.
Whether your company has a sophisticated trade secret protection plan in place or not, the current work environment will stress policies and procedures. Employees pose the biggest threat to securing a company’s valuable IP, and several remote-working concerns raise long-term policy questions to be addressed over time. But, the action items can’t all wait until a calmer moment. Consider the following immediate steps as your company reacts to recent events.
1. Communicate current obligations and requirements in the remote working environment
If you have a robust work-from-home policy, review it now with a specific focus on maintaining your company’s most valuable secrets. If you do not have such a policy, implement something immediately, even if it is temporary. Set clear expectations on what information the business considers to be confidential or trade secrets and what particular steps employees are required to follow when using or accessing that information. Not only does it make business sense to keep employees on notice of company policies and procedures, but federal case law under the DTSA has made clear that employees can only be held to trade secret obligations where they are specific and clear, such that employees are “on notice” of the trade secrets.…
Everything You Need To Know Right Now
After a “warp speed” Senate vote overwhelmingly approving the Families First Coronavirus Response Act (FFCRA), President Trump signed the FFCRA into law yesterday. The legislation is historic; it was not only enacted in days instead of the usual months, but for the first time in US history, many…
Last week, in Kim v. Reins International California, Inc., No. S246911, after more than two years on review and extensive briefing by amicus curiae, the California Supreme Court unanimously resolved an issue of first impression concerning the Private Attorneys General Act (PAGA): whether settlement of individual Labor Code claims extinguishes PAGA standing.
California’s Labor Code contains a number of provisions designed to protect the health, safety, and compensation of workers. Among those laws, PAGA provides a mechanism for employees to enforce the Labor Code as the state’s designated proxy. In particular, PAGA authorizes “aggrieved employees” to pursue civil penalties on behalf of the state. Those penalties differ from statutory damages or other penalties an employee may recover individually for alleged Labor Code violations because relief under PAGA is intended to benefit the general public, not the party bringing the action.
Effective Tuesday, March 17, 2020, San Francisco, Alameda, San Mateo, Santa Clara, Santa Cruz, Marin, and Contra Costa counties imposed Shelter-In-Place Orders. These Orders require all individuals ordered to shelter in place in their residences and for businesses to cease all activities at facilities located within the listed counties and with certain exceptions for: (1) “Essential Businesses” (as defined by the Orders); and (2) “Minimum Basic Operations” for businesses that do not qualify as “Essential Businesses.” The Shelter-In-Place Orders currently remain in effect through April 7. At this time, Napa, Solano, and Sonoma counties have not issued similar mandates.
The intent of the Orders is to ensure the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, and to slow the spread of Coronavirus (also known as COVID-19) to the maximum extent possible. Although each of the seven Bay Area counties issued a separate Order, the substantive terms of the Orders are the same.
What Businesses are Covered by the Orders?
All businesses with a facility in the above-listed counties, except for “Essential Businesses,” are covered by the Orders. The Orders list 21 categories of Essential Businesses, ranging from healthcare operations and hardware stores to businesses that ship or deliver goods directly to residences. Employees of Essential Businesses may perform travel to/from and related to the Essential Business. The full list of Essential Businesses may be found here: